State v. Willoughby

[Cite as State v. Willoughby, 2021-Ohio-2611.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 20CA5

VS. :

RAHEEM C. WILLOUGHBY, : DECISION & JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Todd W. Barstow, Columbus, Ohio for appellant.1

Judy Wolford, Pickaway County Prosecuting Attorney, and Jayme H.
Fountain, Assistant Prosecuting Attorney, Circleville, Ohio, for
appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-22-21
ABELE, J.

{¶1} This is an appeal from a Pickaway County Common Pleas

Court judgment of conviction and sentence. Raheem C.

Willoughby, defendant below and appellant herein, pleaded no

contest to one count of aggravated trafficking in drugs and one

count of aggravated possession of drugs.

{¶2} Appellant assigns two errors for review:

1
Different counsel represented appellant during the trial
PICKAWAY, 20CA05 2

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY OVERRULING HIS MOTION TO
SUPPRESS EVIDENCE, IN VIOLATION OF THE
FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE ONE
SECTION TEN OF THE OHIO CONSTITUTION. (T. 7-
24; R. DECISION AND ENTRY 8/2/19).”

SECOND ASSIGNMENT OF ERROR:

“APPELLANT’S PLEA OF NO CONTEST WAS NOT MADE
KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY IN
VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW
PURSUANT TO THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO
CONSTITUTION. (R. ENTRY OF NO CONTEST PLEA
AND SENTENCE, 6/29/20; T. 28-42).”

{¶3} On June 7, 2019, a Pickaway County Grand Jury returned

an indictment that charged appellant with (1) one count of

aggravated trafficking in drugs in violation of R.C.

2925.03(A)(2), and (2) one count of aggravated possession of

drugs in violation of R.C. 2925.11(A). Both charges are second-

degree felonies and included forfeiture specifications.

{¶4} Subsequently, appellant filed a motion to suppress

evidence. At the suppression hearing, Pickaway County Sheriff’s

Deputy Corporal Stephen Harger testified that, during the

daylight hours of May 4, 2019, he observed a vehicle make an

improper lane change, fail to signal, and fail to display a

court proceedings.
PICKAWAY, 20CA05 3

license plate. Harger thereupon initiated a traffic stop: “I

made contact with the driver, a female. Both she and the

passenger, appellant, were extremely nervous, couldn’t answer

very basic questions that I ask everybody that I stop.” Harger

further described the behavior of the car’s occupants: “I asked

them very basic questions, where were you coming from. They

wouldn’t look me in the eye, they were extremely nervous to

where both the driver and the passenger were physically

shaking.” Harger stated that, after the back seat passenger

“was found to have a warrant,” Harger “secured the passenger in

my cruiser.” Harger then removed the driver as she “seemed

possibly being under the influence the way she was acting.”

Harger also requested the assistance of a female deputy and,

during his interaction with the driver, Harger “advised [the

driver] that I had deployed my K-9 for a free air narcotic

search around the vehicle.”

{¶5} After Corporal Harger removed the driver, he also

removed appellant and “explained what was going on, what I was

doing and that I would be performing a simple pat down for

weapons.” When asked at the hearing whether he would ever “run

a K-9 around the car with passengers in the car,” Harger

testified, “[n]o * * * Because safety of the unknown, what’s

inside that vehicle as far as weapons, safety for myself, my
PICKAWAY, 20CA05 4

partner and everybody that could be around. Like I said, we

were right there on 23, we don’t know what’s inside that

vehicle. It’s standard procedure for any type of stop,

including my K-9.” When asked why he advised appellant that he

intended to pat him down, Harger stated, “Just because of all of

the areas that I have been trained in. It was, like I said,

there was inconsistencies of the stories, and just for my

safety.”

{¶6} When Corporal Harger patted down appellant’s outer

garments and “felt a hard bulge in the groin area,” Harger

informed appellant that he found contraband and advised

appellant he was under arrest. After appellant told Harger that

he “had something in his pants,” Harger “put gloves on and I

retrieved it out of his pants.” Harger identified the

contraband as methamphetamine. Appellant also informed Harger

that “he had suboxone in his pants,” and Harger retrieved the

suboxone. At that time, Harger deployed the canine, and

“[i]mmediately, on my cursory search, the dog alerted on the

passenger’s side of the vehicle where Mr. Willoughby was

sitting.”

{¶7} During cross-examination, Corporal Harger acknowledged

that in the criminal complaint he only noted that the driver

appeared to be extremely nervous and that he did not arrest the
PICKAWAY, 20CA05 5

driver. The complaint further stated that, after Harger removed

the contraband, “Mr. Willoughby was secured in the back of

[Deputy Canos’s] cruiser. I deployed my K-9 partner Joris, he

indicated on the drivers side door and the passenger side door

of the vehicle. Upon search of the vehicle, Deputy Cano located

some paraphernalia and a small amount of marijuana inside the

vehicle on the passenger side. Mr. Griffith [back seat

passenger] was transported to the jail on his warrant and Mr.

Willoughby was transported to the jail and charged with

possession of drugs and trafficking in drugs.”

{¶8} After the trial court overruled appellant’s motion to

suppress evidence, appellant pleaded no contest to both counts.

The court accepted appellant’s pleas and: (1) imposed a four-

year mandatory prison sentence for Count One; (2) ordered Count

One be subject to an additional two years of imprisonment

pursuant to the Reagan Tokes Law, (3) merged counts one and two

for purposes of sentencing, and (4) ordered a mandatory three-

year post-release control term. This appeal followed.

I.

{¶9} In his first assignment of error, appellant asserts

that the trial court’s decision to overrule his motion to

suppress evidence violates his rights under the Fourth and

Fourteenth Amendments to the United States Constitution.
PICKAWAY, 20CA05 6

Appellant argues that the trial court erroneously applied the

inevitable discovery rule when the court denied appellant’s

motion to suppress. Appellant further contends that the

prosecution did not adduce evidence to establish that (1) the

canine could detect contraband no longer in a vehicle, and (2)

the evidence did not establish what particular drug sparked the

canine’s alert on the car, although the post-alert vehicle

search found marijuana.

{¶10} In general, appellate review of a motion to suppress

evidence presents a mixed question of law and fact. State v.

Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶

16, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. When ruling on a motion to suppress

evidence, a trial court assumes the role of trier of fact and is

in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Roberts, 110 Ohio St.3d

71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Thus, a reviewing

court must defer to a trial court’s findings of fact if

competent, credible evidence exists to support the trial court’s

findings. Id.; State v. Fanning, 1 Ohio St.3d 19, 20, 437

N.E.2d 583 (1982); State v. Debrossard, 4th Dist. Ross No.

13CA3395, 2015-Ohio-1054, ¶ 9. The reviewing court then must

independently determine, without deference to the trial court,
PICKAWAY, 20CA05 7

whether the trial court properly applied the substantive law to

the case’s facts. See Roberts at ¶ 100; Burnside, supra, at ¶

8; State v. Hansard, 4th Dist. Gallia No. 19CA11, 2020-Ohio-

5528, ¶ 15.

A. Pat-Down Search for Weapons

{¶11} The Fourth Amendment to the United States Constitution

and Article I, Section Fourteen of the Ohio Constitution,

protect individuals from unreasonable searches and seizures.

State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d

787, ¶ 15. The exclusionary rule protects this constitutional

guarantee and mandates the exclusion of evidence obtained from

an unreasonable search and seizure. Id.

{¶12} The case sub judice involves an automobile

investigatory stop. To make an investigatory stop, an officer

must have a reasonable, articulable suspicion that the driver

has, is, or is about to commit a crime, including a minor

traffic violation. See State v. Petty, 2019-Ohio-4241, 134

N.E.3d 222, ¶ 12 (4th Dist.); State v. Shrewsbury, 4th Dist.

Ross No. 13CA3402, 2014-Ohio-716, ¶ 15, citing United States v.

Williams, 6th Cir. No. 12-5844, 2013 WL 1831773 (May 2, 2013).

In the case at bar, Corporal Harger’s observation of traffic

violations justified the initial investigatory stop. See, e.g.,

Hansard, ¶ 17; State v. Brown, 4th Dist. Ross No. 18CA3644,
PICKAWAY, 20CA05 8

2019-Ohio-1112, ¶ 15; State v. Mays, 119 Ohio St.3d 406, 2008-

Ohio-4539, 894 N.E.2d 1204, syllabus (“A traffic stop is

constitutionally valid when a law enforcement officer witnesses

a motorist drift over the lane markings in violation of R.C.

4511.33, even without further evidence of erratic or unsafe

driving.”)

{¶13} Further, after a stop an officer has the authority to

order the vehicle’s occupants to exit the vehicle. See State v.

Fowler, 4th Dist. Ross No. 17CA3599, 2018-Ohio-241, ¶ 17,

quoting State v. Alexander-Lindsey, 2016-Ohio-3033, 65 N.E.3d

129, ¶ 14 (4th Dist.)(“ ‘Officers may order a driver and a

passenger to exit a vehicle, even absent any additional

suspicion of a criminal violation’ ”). Therefore, in the case

at bar, the officer properly stopped the vehicle and directed

appellant to exit the vehicle. Brown at ¶ 16; Hansard at ¶ 17.

{¶14} An officer may also ask a driver to sit in the patrol

car to facilitate a traffic stop, “but the question of whether

the driver may be searched for weapons before entering the

patrol car is more problematic.” State v. Gordon, 5th Dist.

Ashland No. 17-COA-031, 17-COA-032, 2018-Ohio-2080, ¶ 26. The

Supreme Court of Ohio has held that “[d]uring a routine traffic

stop, it is reasonable for an officer to search the driver for

weapons before placing the driver in a patrol car, if placing
PICKAWAY, 20CA05 9

the driver in the patrol car during the investigation prevents

officers or the driver from being subjected to a dangerous

condition and placing the driver in the patrol car is the least

intrusive means to avoid the dangerous condition.” State v.

Lozada, 92 Ohio St.3d 74, 2001-Ohio-149, 748 N.E.2d 520,

paragraph one of the syllabus. Conversely, “[d]uring a routine

traffic stop, it is unreasonable for an officer to search the

driver for weapons before placing him or her in a patrol car, if

the sole reason for placing the driver in a patrol car during

the investigation is for the convenience of the officer.”

Lozada, paragraph two of the syllabus. Otherwise, “every single

traffic stop could be transformed, as a matter of routine, into

a Terry stop,” and we cannot allow the Fourth Amendment

protection against seizures to “be whittled away by police

regulations.” Lozada at 77, citing O’Hara v. State

(Tex.Crim.App.2000), 27 S.W.3d 548, 553, quoting Sikes v. State,

(Tex.App.1998), 981 S.W.2d 490, 494.

{¶15} Thus, because an officer’s authority to conduct a pat-

down search for weapons does not flow automatically from a

lawful stop, a separate inquiry is required. Terry v. Ohio, 392

U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Consequently,

neither an order to exit the vehicle, nor the act of placing a

motorist in a police cruiser, automatically entitles an officer
PICKAWAY, 20CA05 10

to conduct a pat-down for weapons. State v. Dozier, 187 Ohio

App.3d 804, 2010-Ohio-2918, 933 NE.2d 1160, ¶ 8, citing State v.

Evans, 67 Ohio St.3d 405, 407, 618 N.E.2d 162 (1993). Instead,

to determine whether a person may be subjected to a pat-down

search for weapons, “we must consider whether, based on the

totality of the circumstances, the officer had a reasonable,

objective basis to believe that the motorist was armed and

dangerous.” Evans at 409; State v. Andrews, 57 Ohio St.3d 86,

565 N.E.2d 1271 (1991). The officer “need not be absolutely

certain that the individual is armed; rather, the issue is

whether a reasonably prudent man in those circumstances would be

warranted in the belief that his safety or the safety of others

was in danger.” Andrews at 89.

{¶16} The “right to frisk is virtually automatic when

individuals are suspected of committing a crime, like drug

trafficking, for which they are likely to be armed.” Williams,

51 Ohio St.3d 58, 554 N.E.2d 108 (1990). However, Williams does

not appear at first glance to support a Terry frisk in the case

at bar. At the time Corporal Harger removed appellant from the

vehicle, Harger knew that the driver could possibly be under the

influence, the back seat passenger had an outstanding warrant,

appellant had committed a seat-belt violation, and the car’s

occupants appeared to be “extremely nervous.”
PICKAWAY, 20CA05 11

{¶17} The question of whether Harger had a reasonable,

objective basis to believe that appellant was armed and

dangerous, we note that in State v. Brandon, 2016-Ohio-271, 58

N.E.3d 444 (5th Dist.), officers made contact with Brandon while

he sat in a stationary vehicle, asked for identification, then

asked him to go to the police station to speak with them.

Brandon agreed, but preferred to drive himself. Officers then

patted Brandon down for weapons, “for officer safety.” Id. at ¶

19, 25. The Fifth District observed that officers did not

arrest Brandon, had no legitimate reason to place Brandon in an

unmarked car and drive him to the police station, observed no

weapons in the vehicle, and stood close to Brandon while he

answered questions during the daytime on a public street. Thus,

because officers did not express a reasonable, articulable

suspicion that Brandon was armed and dangerous, the court

concluded that the Terry pat-down search was improper. Id. at

25-27.

{¶18} In State v. Gordon, 5th Dist. 17-COA-031, 17-COA-032,

2018-Ohio-2080, an officer performed the pat-down because of

department policy. The pat-down led to the discovery of a pill

bottle. However, because the officer did not articulate any

reason to believe Gordon to be armed and dangerous, the court

determined the pat-down to be improper. Id. at 27.
PICKAWAY, 20CA05 12

{¶19} In the case sub judice, the trial court concluded that

Corporal Harger’s pat-down search “seem to be his own standard

operating procedure when he removes anyone from a motor

vehicle.” Harger did not articulate facts to demonstrate that

he had a reason to believe that appellant may have been armed

and dangerous. At the suppression hearing, Harger acknowledged

that, although he stated in the complaint that the driver acted

nervously, at the hearing Harger testified that all occupants

behaved that way. Harger also testified that he generally

removes people from vehicles before he walks his canine around a

car because of “safety of the unknown, what’s inside that

vehicle as far as weapons, safety for myself, my partner and

everybody that could be around. Like I said, we were right

there on 23, we don’t know what’s inside that vehicle. It’s

standard procedure for any type of stop, including my K-9.” As

for appellant’s pat-down, Harger stated “just because of all of

the areas that I have been trained in. It was, like I said,

there was inconsistencies of the stories, and just for my

safety.”

{¶20} While we readily agree that officer safety is of

paramount importance, under the lens of existing law that Terry

demands, we believe that the totality of the circumstances in

the case at bar did not rise to the reasonable and objective
PICKAWAY, 20CA05 13

basis to believe that the occupants were armed and dangerous.

We, however, are also fully aware of the alarming trend of

increasing danger and tragic circumstances that law enforcement

officers now encounter on a daily basis while conducting routine

traffic stops. Certainly we can foresee a time when an

officer’s safety may permit a pat-down search for weapons even

during routine traffic stops even without the need for specific

facts to indicate that a detainee may be armed and dangerous.

Today, however, the controlling authorities have not yet adopted

that view.

{¶21} Consequently, we agree with the trial court’s

conclusion that the officer’s pat-down search did not comply

with the Terry requirements. However, to determine whether the

evidence in the case at bar must be suppressed, we turn to a

discussion of the inevitable-discovery doctrine.

B. Inevitable Discovery

{¶22} Although the pat-down search for weapons in the case

sub judice may not have complied with Terry, the trial court

nevertheless determined that the inevitable discovery exception

permits the inclusion of the evidence obtained during the pat-

down search. Appellant, however, contends that (1) no evidence

exists to show that the canine could detect methamphetamine in
PICKAWAY, 20CA05 14

appellant’s pants after he exited the vehicle, and (2) no

evidence exists regarding what particular drug, if any, the

canine alerted to on the car. Appellant observes that the

vehicle search found marijuana, but the officer discovered

methamphetamine and suboxone during appellant’s pat-down search.

{¶23} The Supreme Court of Ohio has held that “illegally

obtained evidence is properly admitted in a trial court

proceeding once it is established that the evidence would have

been ultimately or inevitably discovered during the course of a

lawful investigation.” State v. Perkins, 18 Ohio St.3d 193,

196, 480 N.E.2d 763 (1985), adopting the rule set forth in Nix

v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)

(holding that under the inevitable-discovery doctrine, if the

evidence in question “ultimately or inevitably would have been

discovered by lawful means * * * then * * * the evidence should

be received”). Under the inevitable-discovery doctrine, the

prosecution has the burden to demonstrate, within a reasonable

probability, that law enforcement would have discovered the

evidence in question apart from the unlawful conduct. Perkins,

supra.

{¶24} For evidence to be admitted under the “inevitable

discovery exception,” the state must demonstrate (1) a

reasonable probability that evidence would have been discovered
PICKAWAY, 20CA05 15

by lawful means but for the police misconduct, (2) police

possessed the leads to make the discovery inevitable at the time

of the misconduct, and (3) police actively pursued an alternate

line of investigation prior to the misconduct. United States v.

Buchanan, 904 F.2d 349, 356 (6th Cir.1990), quoting United

States v. Webb, 796 F.2d 60 (6th Cir.1986); State v. Taylor, 138

Ohio App.3d 139, 151, 740 N.E.2d 704 (2000), citing State v.

Wilson, 97 Ohio App.3d 333, 335, 646 N.E.2d 863 (1994); State v.

Coston, 168 Ohio App.3d 278, 2006-Ohio-3961, 859 N.E.2d 990, ¶

25 (10th Dist.). Thus, we must examine whether a reasonable

probability exists that law enforcement would have discovered

appellant’s drugs apart from the improper pat-down search.

{¶25} It is well-settled that the use of trained drug-

detection dogs during lawful traffic stops will not trigger

Fourth Amendment protection. Illinois v. Caballes, 543 U.S.

405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). A drug-

detection dog may sniff a vehicle’s exterior during a lawful

traffic stop even in the absence of a reasonable suspicion of

drug-related activity. Id. at 409, 125 S.Ct. 834. However, law

enforcement may not unreasonably extend a traffic stop to

conduct a dog sniff, absent a reasonable suspicion of drug

activity. Rodriguez v. United States, 575 U.S. 348, 357-358,
PICKAWAY, 20CA05 16

135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). The question “is not

whether the dog sniff occurs before or after the officer issues

a ticket, * * * but whether conducting the sniff ‘prolongs’--

i.e., adds time to - - ‘the stop.’” Rodriguez, supra, at 357,

citation omitted. In the present case Corporal Harger had the

canine on the scene from the inception of the vehicle stop and

available to sniff the vehicle’s exterior. In fact, as the

trial court points out, Harger actually advised the driver that

Harger intended to deploy his canine for a vehicle sniff before

he gave appellant a pat-down. Furthermore, the canine sniff did

not unreasonably extend the duration of the stop.

{¶26} It is also well-settled that, if a trained narcotics

dog alerts to the odor of drugs from a lawfully detained

vehicle, an officer then has probable cause to search the

vehicle for contraband. Florida v. Harris, 568 U.S. 237, 133

S.Ct. 1050, 185 L.Ed.2d 61 (2013); United States v. Reed, 141

F.3d 644 (6th Cir.1998) (quoting United States v. Berry, 90 F.3d

148, 153 (6th Cir.1996), cert. denied 519 U.S. 999, 117 S.Ct.

497, 136 L.Ed.2d 389 (1996); accord, United States v. Hill, 195

F.3d 258, 273 (6th Cir.1999); United States v. Diaz, 25 F.3d

392, 394 (6th Cir.1994). However, probable cause to search a

vehicle’s occupant has a more demanding standard. In United
PICKAWAY, 20CA05 17

States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210

(1948), the United States Supreme Court held that probable cause

to search a car does not mean that “a person, by mere presence

in a suspected car, loses immunities from search of his person

to which he would otherwise be entitled.” Id. at 587, 68 S.Ct.

222. Similarly, “a person’s mere propinquity to others

independently suspected of criminal activity does not, without

more, give rise to probable cause to search that person.”

Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d

238 (1979).

{¶27} In deciding the suppression issue in the case sub

judice, the trial court cited State v. Jones, 4th Dist.

Washington No. 03CA61, 2004-Ohio-7280, and State v. Kelley, 4th

Dist. Ross No. 10CA3182, 2011-Ohio-3545. In State v. Jones,

supra, this court upheld the warrantless search of a vehicle’s

passenger when a narcotics dog alerted in the area of the

vehicle where the defendant was seated. Id. at ¶ 43. We added,

however, that, although “the dog’s positive reaction to the

vehicle while Jones was seated in it was clearly relevant, this

factor alone is insufficient to constitute probable cause to

search Jones’ person.” Id. Also, in Jones (1) the officer

observed Jones make furtive movements in the backseat, (2) the
PICKAWAY, 20CA05 18

officer knew Jones had a history of drug possession, (3) the

canine alerted to drugs while Jones was seated in the car, and

(4) Jones attempted to hinder the pat-down search. These

factors do not appear to be present in the case at bar, however.

{¶28} In State v. Kelley, supra, this court found it

unnecessary to determine whether a dog’s alert, by itself, could

establish probable cause to search a person seated in a vehicle.

Id. at ¶ 24. We noted, however, that “we have previously

indicated that although a dog’s alert on a vehicle with a

defendant seated in it may be a relevant factor in the probable

cause analysis, ‘this factor alone is insufficient to constitute

probable cause to search [the] person.’ ” Id., citing Jones at

¶ 43. Rather than focus on one factor, such as the dog alert,

we concluded that the officer possessed probable cause to search

Kelley under the totality of the circumstances. Id. We also

observed that in State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d

804 (2000), the Supreme Court of Ohio held that “[t]he smell of

marijuana, alone, by a person qualified to recognize this odor,

is sufficient to establish probable cause to conduct a search.”

Moore, syllabus. Thus, in Kelley we observed that “[o]ne could

easily infer that a drug dog’s alert on a vehicle is at least

similar, and maybe more precise, to a trained officer’s smell of
PICKAWAY, 20CA05 19

marijuana.” Kelley, supra, footnote 3. In Kelley, the dog

alerted on the vehicle’s passenger side while Kelley sat in the

vehicle.

{¶29} In the case at bar, Corporal Harger observed a vehicle

make an illegal lane change, fail to signal, and fail to

properly display a license plate. The officer testified that

all occupants were “extremely nervous,” the driver appeared to

be shaking and under the influence, and a back-seat passenger

had an outstanding warrant. “While [some] degree of nervousness

during interactions with police officers is not uncommon, * * *

nervousness can be a factor to weigh in determining reasonable

suspicion.” State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670, ¶

17 (12th Dist.) After the officer advised the occupants of his

intention to conduct a canine vehicle sniff, he conducted a pat-

down search for weapons that resulted in the discovery of

appellant’s drugs, albeit immediately prior to the canine

vehicle search. Shortly thereafter, the canine alerted to the

presence of drugs on the side of the car where appellant had

been sitting. Thus, because the canine did alert to the

presence of drugs, the officer’s pat-down of appellant would

have been justified after the canine alert. Taken together, we

agree with the trial court’s conclusion that the totality of the
PICKAWAY, 20CA05 20

circumstances present in the case sub judice supports the

application of the inevitable-discovery doctrine.

{¶30} Accordingly, based upon the foregoing reasons we

overrule appellant’s first assignment of error.

II.

{¶31} In his second assignment of error, appellant asserts

that he did not enter a knowingly, voluntary, and intelligent no

contest plea. In particular, appellant argues, citing R.C.

2937.07, that the trial court’s plea colloquy failed to advise

him of the effects of his no contest plea and that his plea did

not constitute an admission of guilt.

{¶32} In deciding whether to accept a plea, a court must

determine whether a defendant is making the plea knowingly,

intelligently, and voluntarily. State v. McDaniel, 4th Dist.

Vinton No. 09CA677, 2010–Ohio–5215, ¶ 8. “ ‘In considering

whether a guilty plea was entered knowingly, intelligently and

voluntarily, an appellate court examines the totality of the

circumstances through a de novo review of the record to ensure

that the trial court complied with constitutional and procedural

safeguards.’ ” (Emphasis sic.) Id., quoting State v. Eckler,

4th Dist. Adams No. 09CA878, 2009–Ohio–7064, ¶ 48; State v.

Hearn, 4t Dist. Washington No. XXX, 2021-Ohio-594, ¶ 18; State
PICKAWAY, 20CA05 21

v. Barner, 4th Dist. Meigs No. 10CA9, 2012-Ohio-4584, ¶ 8.

{¶33} “Before accepting a guilty plea, the trial court

should engage in a dialogue with the defendant as described in

Crim.R. 11(C).” McDaniel at ¶ 8, citing State v. Morrison, 4th

Dist. No. 07CA854, 2008–Ohio–4913, ¶ 9. Crim.R. 11(C)(2)

provides:

In felony cases the court may refuse to accept a plea
of guilty or a plea of no contest, and shall not
accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of
the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the
charges and of the maximum penalty involved and if
applicable, that the defendant is not eligible for
probation or for the imposition of community control
sanctions at the sentencing hearing.
* * *

{¶34} Substantial compliance with Crim.R. 11(C)(2)(a) is

sufficient for a valid plea concerning nonconstitutional rights.

State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E.2d

621, ¶ 14. “ ‘Substantial compliance means that, under the

totality of the circumstances, appellant subjectively understood

the implications of his plea and the rights he waived.’ ”

McDaniel at ¶ 13, quoting State v. Vinson, 10th Dist. No. 08AP–

903, 2009–Ohio–3240, ¶ 6. As the Supreme Court of Ohio

explained in State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748,
PICKAWAY, 20CA05 22

893 N.E.2d 462, ¶ 32:

When the trial judge does not substantially comply
with Crim.R. 11 in regard to a nonconstitutional
right, reviewing courts must determine whether the
trial court partially complied or failed to comply
with the rule. If the trial judge partially complied,
e.g., by mentioning mandatory postrelease control
without explaining it, the plea may be vacated only if
the defendant demonstrates a prejudicial effect. The
test for prejudice is “whether the plea would have
otherwise been made.” If the trial judge completely
failed to comply with the rule, e.g., by not informing
the defendant of a mandatory period of postrelease
control, the plea must be vacated. “A complete failure
to comply with the rule does not implicate an analysis
of prejudice.” (Emphasis sic.) (Citations omitted.)

{¶35} “Crim.R. 11(C)(2)(b) requires the trial court to

inform the defendant of the effect of his guilty or no-contest

plea and to determine whether he understands that effect.”

State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d

677, ¶ 12; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

814 N.E.2d 51, ¶ 10-12. “To satisfy the effect-of-plea

requirement under Crim.R. 11(C)(2)(b), a trial court must inform

the defendant, either orally or in writing of the appropriate

language of Crim.R. 11(B).” Jones at ¶ 25, 51. Further, the

trial court must also inform the defendant that upon acceptance

of his pleas, it “may proceed with judgment and sentence.”

Crim.R. 11(C)(2)(b).
PICKAWAY, 20CA05 23

{¶36} At the June 29, 2020 change of plea hearing, appellee

indicated “[t]he state has agreed to offer Mr. Willoughby a no

contest plea to both counts in this particular matter. That way

it preserves his appeal rights for the suppression motion,

understanding the state is then also still recommending a four-

year mandatory prison term.” Appellant’s counsel stated that he

read the change of plea form to appellant, “and I think that I

have explained it to his satisfaction. He has signed the

document in both places, both the change of plea form and the

waiver of jury trial rights, and the acknowledgment thereof.”

The trial court addressed appellant and inquired about his

education level, to which appellant replied, “I’m actually

college educated.” After the court discussed the charges and

maximum sentence, the court stated, “[h]ow this operates, Mr.

Willoughby, is if you are pleading no contest, there is a

stipulation of finding of guilt[.]” The court also explained

that appellant would be waiving his right to a jury trial and

stated:

[I]f you plead no contest to these charges here this
morning with a stipulation of guilt, you are giving up
your right to go further with this jury trial and all
the other rights I just got through explaining to you.

By pleading no contest with a stipulation of guilt, it
will preserve your right to appeal the decision
previously made in this court with respect to your
PICKAWAY, 20CA05 24

motion to suppress. Do you understand that?

Appellant replied, “Yes. I understand that.” The trial court

then reviewed the agreed sentence and asked appellant if he

understood, to which he replied, “Yes, I understand it

completely.” After hearing an explanation about post-release

control, appellant entered his plea and stated, “I intend to

appeal the suppression motion that falls within the thirty

days.” Appellant also requested appellate representation.

{¶37} After our review in the case at bar, we believe that

the trial court substantially complied with the applicable

rules. Further, appellant acknowledged that he understood the

implications of his plea and the various rights that he would

waive through a no contest plea. Appellant, represented by

counsel at the plea hearing, did not assert his innocence and we

find nothing to suggest any confusion or lack of understanding

regarding the effect of his plea. Moreover, appellant did not

argue that he would not have entered his no contest plea but for

the trial court’s alleged error. See State v. Nero, 56 Ohio

St.3d 106, 108, 564 N.E.2d 474. Moreover, even if the trial

court was arguably required to recite the facts and

circumstances that surrounded the no contest pleas, the omission

at most constitutes harmless error. Therefore, because
PICKAWAY, 20CA05 25

appellant failed to establish prejudice, we conclude that

appellant knowingly, voluntarily, and intelligently entered his

no contest pleas.

{¶38} Accordingly, based upon the foregoing reasons we

overrule appellant’s second assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
PICKAWAY, 20CA05

26

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Pickaway County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted by the trial court or this court, it
is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is
to allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60 day period,
or the failure of the appellant to file a notice of appeal with
the Supreme Court of Ohio in the 45-day appeal period pursuant
to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of 60 days, the stay will
terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:_________________________
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.